No. 91-581 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA ex rel. 

DEPARTMENT OF HEALTH AND 

ENVIRONMENTAL SCIENCES, 

Plaintiff and Respondent, 

v. 

DONALD REESE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel E. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael R. Tramelli, Attorney at Law, 

Great Falls, Montana 

For Respondent: 

Patrick L. Paul, Cascade County Attorney, 

Dean D. Chisholm, Deputy County Attorney, 

Great Falls, Montana 

Submitted on Briefs: May 20, 1993 

Decided: August 17, 1993 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Donald Reese appeals from an order of the Eighth 

Judicial District Court, Cascade County, lifting a stay of its 

order and ordering Reese to remove all but three junk vehicles from 

certain property pursuant to 5 75-10-541, MCA (1987). 

We aff inn. 

Reese presents three issues for this Court's consideration 

which we consolidate as follows: 

1. Should the default judgment entered by the clerk of court 

on May 11, 1989, against appellant be set aside? 

2. Did respondent Department of Health and Environmental 

Sciences (DHES) violate Reese's due process rights by not providing 

him with notice of the March 6, 1992, hearing? 

On April 14, 1989, the DHES, acting through the Cascade County 

Attorney's office, filed a complaint against Reese for maintaining 

a motor vehicle wrecking facility, or motor vehicle graveyard, 

without a license issued by the DHES. Reese was served with the 

complaint on April 19, 1989. 

On May 9, 1989, Reese filed a letter addressed to the court 

and stated that "[tlhe automobiles in question will be shielded 

from public view within 30 days." On May 11, 1989, the DHES 

applied for entry of default judgment pursuant to Rule 55, 

M.R.Civ.P., and the clerk of court entered the default on the same 

day. Also, the DHES filed a motion with the court for default 

judgment . 
Hearing was held on June 8, 1989, with the Deputy County 

Attorney representing the DHES and Reese appearing pro se. On 

June 21, 1989, the Court entered its findings of fact, conclusions 

of law, and order for default judgment. On May 14, 1990, the court 

held a hearing to determine the appropriate relief to be granted. 

On May 17, 1990, the court enjoined Reese from having more than 

three junk vehicles on the property and ordered Reese to remove 

them within 30 days. On June 15, 1990, Reese appealed the May 17, 

1990, order of the District Court. 

On November 13, 1990, this Court dismissed the appeal with 

prejudice because Reese did not prosecute his appeal. On 

February 5, 1991, the DHES motioned the District Court for a review 

hearing in the matter. The hearing was held on March 6, 1991. 

During this hearing, the court reiterated its order of May 17, 

1990, and ordered Reese to remove all junk vehicles from the 

property by March 15, 1991. Reese failed to comply with the order. 

On March 25, 1991, the DHES removed 39 of the 50 or more vehicles 

on Reesels property. 

On March 27, 1991, Reese filed a motion to stay execution of 

the court's order pending a hearing, which was granted. Hearing 

was held on the issue on August 30, 1991. On September 4, 1991, 

the court lifted the stay and ordered Reese to remove all junk 

vehicles except three. It is from this order that Reese appeals. 

I. 

Should the default judgment entered by the clerk of court on 

May 11, 1989, against Reese be set aside? 

3 
Reese contends that the default judgment of May 11, 1989, 

should be set aside pursuant to Rule 60(b), M.R.Civ.P. We 

disagree. 

Rule 12, M.R.App.P., states that I1[t]he dismissal of an appeal 

is in effect an affirmance of the judgment or order appealed from, 

unless the dismissal is expressly made without prejudice to another 

appeal. It 

In United Bank of Pueblo v. Iverson (1974), 164 Mont. 473, 525 

P.2d 21, the district court granted an initial motion for summary 

judgment which defendants appealed to this Court. The appeal was 

subsequently dismissed by request of the defendants. The 

defendants later filed a motion to vacate the summary judgment. 

The district court denied the motion for failure to prosecute. 

Defendants filed a second motion 18 months later based on 

Rule 60(b), M.R.Civ.P. The district court deniedthat motion also. 

On appeal this Court affirmed the denial stating: 

The refusal cannot be revived for a second review by the 

filing of a second identical motion to vacate 18 months 

later. The first denial of defendants1 motion to vacate 

for the reason defendants failed to prosecute the same 

became the law of the case and binding on the parties. 

The matters necessarily adjudicated therein became res 

judicata. [Citation omitted.] 

Iverson, 525 P.2d at 23. 

In Liblin v. Huffine (1950), 124 Mont. 361, 224 P.2d 144, the 

district court sustained defendants* demurrer to plaintiffs' 

amended complaint dismissing plaintiffs* complaint. Plaintiffs 

appealed the decision to this Court. This Court dismissed the 
appeal for failure to prosecute. Six months later, plaintiffs 

filed another appeal. This Court stated: 

Where as here an appellate court had unqualifiedly 

affirmed a judgment of the trial court, it would 

obviously and unnecessarily protract litigation to allow 

further or successive appeals from the judgment so 

affirmed. Such successive appeals in fact would be 

appeals attempted to be taken from the decision of the 

appellate court itself. 

Liblin, 224 P.2d at 146. 

Here, the District Court entered a default judgment and Reese 

appealed. Reese failed to prosecute his appeal by ordering the 

necessary transcripts. upon motion of the DHES, and without 

objection by Reese, this Court dismissed the appeal with prejudice. 

The dismissal affirmed the order of the District Court and became 

the law of the case. We affirm the decision of the District Court 

in refusing to set aside its May 11, 1989, default judgment. 

Did the DHES violate Reese's due process rights by not 

providing him with notice of the March 6, 1992, hearing? 

Reese argues that he was denied procedural due process under 

the takings clause of the Fourteenth Amendment of the United States 

Constitution. The crux of procedural due process is that some form 

of hearing with notice of its availability must be had before a 

person is finally deprived of a property interest. Kennerly v. 

United States (9th Cir. l983), 721 F.2d 1252, 1257. The hearing on 

March 6, 1992, did not have any effect on Reese's property 

interests because his proprietary interests had already been 

litigated. With this Court's dismissal of the appeal, the DHES had 
full authority to act upon the District Court's order of May 17, 

1990. The purpose of the March 6, 1992, hearing was to reiterate 

and inform Reese of the legal effect of the court's order. It did 

not contemplate any substantive rights of Reese. "Due process does 

not require a new hearing on matters that are res judicata." In 

the Matter of the Estate of Counts (1985), 217 Mont. 350, 355, 704 

P.2d 1052, 1055. 

We hold that the DHES did not violate Reesels due process 

rights. 

The DHES's request for damages pursuant to Rules 32 and 33, 

M.R.App.P., is denied. 

We affirm the decision of the District Court. 

Justice 

We concur: 
August 17, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

MICHAEL R. TRAMELLI 

Attorney at Law 

104 2nd St. South, Suite 201 

Great Falls, MT 59405 

PATRICK PAUL, County Attorney 

Dean D. Chisholm, Deputy 

Cascade County Courthouse 

Great Falls, MT 59401 

PETE FRAZIER 

CountylCity Health Department 

1130 17th Avenue South 

Great Falls, MT 59405 

ED SMITH 

CLERK OF THE SUPREME COURT